One of the less-discussed parts of today’s ruling on Obamacare involved the Affordable Care Act’s expansion of Medicare. Under the Act as written, if a state chose not to participate in the expansion of Medicare, it would forgo not just the money that would fund the expansion, but also the federal funding of its existing Medicare programs. The Court limited that aspect of the Act, prohibiting the federal government from withholding existing funding in retaliation for a state’s refusal to take part in the expansion. According to Chief Justice Roberts’s opinion, “Congress cannot simply ‘conscript state [agencies] into the national bureaucratic army.’” Seven of the nine Justices, some writing separately, agreed that the federal government could not condition Medicare funding in this way.
The federal No Child Left Behind Act also conditions continued receipt of pre-existing federal funding on compliance with new “reforms.” There are several distinctions that could justify treating NCLB differently than the Medicare expansion – most importantly, federal education funding makes up a smaller portion of the state’s budget than federal Medicare funding does, and so the threat of withholding it might not rise to the level of being “so coercive as to pass the point at which ‘pressure turns into compulsion.’” But it certainly opens the door to an argument that NCLB is an unconstitutional use of Congress’s spending power.
On the one hand, the threat of losing federal education funding was compelling enough that none of the fifty states chose not to adopt the federal program. To get the federal money, states have undoubtedly pursued policies that they wouldn’t otherwise have chosen to pursue – that’s the whole point of making funding conditional. Recently, for example, our state’s Education Director admitted that there was little evidence to support some of the proposals he was making, but that they were nonetheless necessary to get the federal NCLB waiver and the accompanying “relief for schools.”
On the other hand, would it really be so hard for a state to pass up federal education funding and the (often expensive) mandates that go with it? As Roberts writes, “In the typical case we look to the States to defend their prerogatives by adopting ‘the simple expedient of not yielding’ to federal blandishments when they do not want to embrace the federal policies as their own. . . . The States are separate and independent sovereigns. Sometimes they have to act like it.” When it comes to No Child Left Behind, I wish they would act like it.